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Biden to Phase Out Privately-Run Federal Prisons; Critics Say Plan Too Timid

Biden campaigned on a platform promising to address problems in the corrections system. He said he intended to crack down on police and prosecutorial misconduct, reduce prison population and increase probation efforts, improve immigration conditions, and stop profiting off of prison privatization. He said he would ‘‘make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants.

He had a ‘‘Day One’’ agenda of eliminating the Migrant Protection Protocols or ‘‘Remain in Mexico’’ policy, defining citizenship procedures to assist asylum seekers, and create a task force to reunite separated families. Once in office, he signed the United States Citizenship Act of 2021, largely making good on his promises. He signed orders ending the Muslim ban, fortifying protections for DREAMers, stopping construction on the border wall, and putting a 100-day hold on deportation.

Still, activists said that this was not enough. Opposition has reduced the effectiveness of many of his reforms. A Trump-appointed federal judge blocked Biden’s 100-day hold on deportations, Republicans filibustered the president’s Department of Homeland Security nominee. Alejandro Mayorkas was finally confirmed  as secretary February 2, 2021.

On January 26, Biden signed the ‘‘First Step’’ executive order preventing the BOP from renewing any contract with a private company to run its prisons. He said it was a ‘‘first step’’ in stopping private industries from profiting off ‘‘incarceration that is less humane and less safe.’’

Privatization of prisons began in the 1800s and became popular right after the Civil War. But the modern era was ushered in with mass incarceration policies of the 1980s brought about by the “War on Drugs.” It has since turned into a billion-dollar industry where profits are made by maintaining a high population of prisoners and cutting as many costs as possible. This has translated to overcrowded and inhumane living conditions. Statistics show that private prisons see an increased rate of assaults (both on other prisoners and staff), use of force incidents, and lock downs.

There are currently 11 private prisons in the BOP. The Trump administration permitted the Bureau to enter into more private prison contracts than previously allowed. The Courthouse News Service said he doubled the revenues of CoreCivic and the GEO Group, two of the largest private prison industries in the United States.

Senior advocacy and policy counsel at the American Civil Liberties Union (ACLU) Naureen Shah said these groups make a business off of profiting from human suffering. ‘‘These private prison companies have incentive to minimize their costs at the disregard of human suffering,’’ she said, ‘‘and ICE just gets to point their fingers back at private prison companies, saying, well it’s not us, it’s them. That’s sickening.’’

But, activists said that President Biden’s executive order was no more than a symbolic act, it did not go far enough nor focus on the bureau more greatly affected by the abuses inherent in privatization. According to the Associated Press, out of the 152,000 prisoners in the federal BOP today, only about 14,000 of them are housed in private prisons. Although that is down from the 27,000 the Bureau of Justice Statistics recorded in 2019, it is still only 0.7% of the total 2,000,000 people incarcerated in the United States.

Critics say President Biden should have taken this opportunity to enforce the same restrictions on the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE). Private prisons hold 75% of all DHS detention contracts, and ICE has detained 50,000 to 56,000 people daily, according to a 2020 ACLU report, 81% of them in private-run facilities.

News outlet The Daily Beast said that to organizations that have fought for immigrant rights, not including the entire carceral system in this order was unconscionable. ‘‘Whether called ‘jail,’ ‘prison,’ or ‘detection center,’ these systems share the same unjust design: to incarcerate people of color, profit off of them, and strip them of their dignity,’’ stated Silky Shah, executive director of Detention Watch Network. ‘‘The Biden administration must now address the private prison industry’s toxic relationship with the Department of Homeland Security.’’

Immigration detention is not even a criminal commitment. It is a civil one and activists believe it is unwarranted, abusive, and discriminatory. Laura Rivera, immigration attorney for Southern Poverty Law Center’s Action Fund and director of its Southeast Immigrant Freedom Initiative said, ‘‘It’s unacceptable for the Biden-Harris administration to exclude immigrant prisons from today’s executive order. The very concept of detaining immigrants is rotten to its core. This is an irredeemable, profit-driven racket that the Biden-Harris administration must address.’’

Banning private prison contract renewals will not release anyone from prison early, and it will be a gradual closing of private-run facilities. Prisoners will be able to be moved to another facility before the one they are in closes. ‘‘They’ll have time to transfer these people from private facilities to non-private ones,’’’ said Fordham University School of Law professor John Pfaff. ‘‘It doesn’t necessarily mean a shrinking of the footprint of prisons, it just means a transfer from privates to the public.’’

At least BOP prisoners will be able to be moved. In facilities that house both BOP prisoners and ICE detainees, the prisoners will be moved leaving the detainees living in the same housing conditions found ‘‘inhumane’’ for prisoners.

GEO Group spokesperson Pablo Paez said the president failed to consider the economic impact this would have on surrounding communities. He called it a ‘‘solution in search of a problem.’’ The BOP had already decided not to renew several of their contracts with private prisons prior to the order.

‘‘[The] executive order merely represents a political statement, which could carry serious negative unintended consequences, including the loss of hundreds of jobs and negative economic impact for the communities where our facilities are located, which are already struggling due to the Covid pandemic,’’ he said.

Moreover, the order does not address the other privatized aspects of prisons. Director of the ACLU’s National Prison Project David Fathi said it is just a start at curtailing the ‘‘insidious practice’’ of privatization. Other areas still need addressing such as private health care in prisons, which Fathi says has been ‘‘the source of much abuse and malfeasance in recent years.’’

Reform advocates concerns that DHS and ICE were not included in this order have been addressed by White House staffers. Although no similar order was planned as of January 26, the two news sources The Daily Beast and POLITICO reported that the White House said it was now considering drafting an order of the same nature for the two bureaus.

Critics also contend that this bill does even begin to address myriad other problems that plague our criminal justice system. Pfaff called it a ‘‘symbolic’’ act. He stated that he hoped this order did not give the false impression that this would solved the issues of profiting from prisons. ‘‘Saying we’re taking the profit out of prisons by shutting down the private facilities ignores the massive amount of [financial incentives] on the public side,’’ he said.

Prison systems can spend up to two-thirds of their budget on such things as salaries, overtime, and benefits. ‘‘That is very much a form of profit that encourages [legislators] to lobby aggressively to keep their prisons open. When you engage in a symbolic act, which [this order] mostly is, you have to make sure the symbolism doesn’t actually undermine the broader message that you need to convey.’’

Holly Harris, executive director of the bipartisan advocacy group Justice Action Network, told Time the order was an ‘‘important and critical step in right-sizing our justice system.’’

‘‘I get that advocates are frustrated, and I’m grateful that there are so many people out that’s pushing for more,’’ she said. Nonetheless, she added that she believed Biden had plans to accomplish a whole lot more. ‘‘For me, I’m willing to extend some grace on day six to this new administration.’’ 


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